STATE OF NEW JERSEY VS. ABHINABA BARTHAKUR(14-12-0797, SOMERSET COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 23, 2017
• Docket: A-0566-16T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0566-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ABHINABA BARTHAKUR,

Defendant-Appellant. _______________________________

Submitted October 12, 2017 – Decided October 23, 2017

Before Judges Haas and Gooden Brown.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 14-12-0797.

Hegge & Confusione, LLC, attorneys for appellant (Michael Confusione, of counsel and on the brief).

Michael H. Robertson, Somerset County Prosecutor, attorney for respondent (Perry Farhat, Assistant Prosecutor, on the brief).

PER CURIAM

Following a bench trial, defendant was convicted of third-

degree terroristic threats, N.J.S.A. 2C:12-3(a). The judge

sentenced defendant to twenty-four months of probation conditioned

on defendant serving 180 days in the county jail. On appeal, defendant raises the following contentions:

Point [I]

The trial court erred in denying defendant's motion for acquittal and, then, in finding defendant guilty of third-degree terroristic threats.

Point [II]

Defendant's sentence is improper and excessive.

We affirm.

Turning to Point I, defendant argues that the trial judge

incorrectly denied his motion for a judgment of acquittal at the

end of the State's case-in-chief, and that the judge's verdict at

the conclusion of the trial was against the weight of the evidence.

We disagree.

A motion for acquittal must be granted "if the evidence is

insufficient to warrant a conviction." R. 3:18-1.

On a motion for judgment of acquittal, the governing test is: whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged.

[State v. D.A., 191 N.J. 158, 163 (2007) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967)).]

2 A-0566-16T3 We have stated that "the trial judge is not concerned with

the worth, nature[,] or extent (beyond a scintilla) of the

evidence, but only with its existence, viewed most favorably to

the State." State v. DeRoxtro, 327 N.J. Super. 212, 224 (App.

Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 341

(App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). Our review

of a trial court's denial of a motion for acquittal is "limited

and deferential[,]" and is governed by the same standard as the

trial court. State v. Reddish, 181 N.J. 553, 620 (2004).

In considering whether a guilty verdict was against the weight

of the evidence produced at trial, "our task is to decide whether

'it clearly appears that there was a miscarriage of justice under

the law.'" State v. Smith, 262 N.J. Super. 487, 512 (App. Div.)

(quoting R. 2:10-1), certif. denied, 134 N.J. 476 (1993). "We

must sift through the evidence 'to determine whether any trier of

fact could rationally have found beyond a reasonable doubt that

the essential elements of the crime were present.'" Ibid. (quoting

State v. Carter, 91 N.J. 86, 96 (1982)).

Applying these standards, we conclude that the State

presented sufficient proofs both in its case-in-chief and in the

full trial to establish beyond a reasonable doubt that defendant

made terroristic threats.

3 A-0566-16T3 A person who "threatens to commit any crime of violence with

the purpose to terrorize another" is guilty of third-degree

terroristic threats. N.J.S.A. 2C:12-3(a). On the day of the

incident, one of defendant's neighbors called the police to report

that defendant was shooting off a gun on his property. Two police

officers went to defendant's home to investigate. Upon their

arrival, defendant approached the officers aggressively and began

screaming at them to get off his property. The officers saw that

defendant had a large dog barking and roaming the perimeter of the

house.

Despite the officers' efforts to calm defendant, he

threatened to let his dog loose to attack them. Defendant then

stated he was going to get his gun, and started running toward his

house. At that point, the officers grabbed defendant and arrested

him. At the police station, defendant stated he would shoot the

officers and anyone else who came on his property. Defendant also

threatened to cut off the feet of one of the officers. The trial

judge found that the officers' testimony was credible.

Under these circumstances, we discern no basis for disturbing

defendant's conviction. The State's proofs regarding the serious

threats defendant made were overwhelming. Thus, we reject

defendant's contention on this point.

4 A-0566-16T3 In Point II, defendant argues that his sentence was excessive.

Trial judges have broad sentencing discretion as long as the

sentence is based on competent credible evidence and fits within

the statutory framework. State v. Dalziel, 182 N.J. 494, 500

(2005). Judges must identify and consider "any relevant

aggravating and mitigating factors" that "are called to the court's

attention[,]" and "explain how they arrived at a particular

sentence." State v. Case, 220 N.J. 49, 64-65 (2014) (quoting

State v. Blackmon, 202 N.J. 283, 297 (2010)). "Appellate review

of sentencing is deferential," and we therefore avoid substituting

our judgment for the judgment of the trial court. Id. at 65;

State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95

N.J. 334, 365 (1984).

We are satisfied the judge made findings of fact concerning

aggravating and mitigating factors that were based on competent

and reasonably credible evidence in the record, and applied the

correct sentencing guidelines enunciated in the Code, including

the imposition of a custodial term for this third-degree offense.

Accordingly, we discern no basis to second-guess the sentence.

Affirmed.

5 A-0566-16T3